310. Cabinet Office guidance[332]
says that when a Department presents a Bill to Parliament, it
should produce a Full Regulatory Impact Assessment (RIA) setting
out with some precision what the costs of the Bill will be. The
Full RIA should build on a Partial RIA, produced during consultation
on the Bill and setting out as definite estimates of cost as possible.

311. When the Department presented the Bill to Parliament
in June 2003, however, they provided no estimates of cost. The
Bill was not accompanied by a Full RIA, but only by a Partial
RIA and this did not contain any cost estimates at all.

312. The Department told the Committee that they
had Treasury agreement to publish the draft Bill before the resources
required had been fully assessed and the costs settled.

Estimate of costs provided to the Committee

313. The Department did not provide us with any estimates
of costs until 16 October 2003. Even so, these late estimates
appear to be highly provisional at best. In written evidence the
Department told us that these figures 'are very much initial estimates.
Significant refinements are likely before the Bill is introduced
to Parliament.'[333]
They also said: 'Figures at this stage should be seen only
as a rough indication of the likely scale of the cost of the Bill.'[334]

314. The Association of Directors of Social Services
(ADSS) told us that Local Authorities, on which many of the costs
of the Bill will fall, had not done detailed work on costing the
implications of the Bill. They told us that the Department for
Constitutional Affairs and the Department of Health had only started
talking to them in the last couple of months about costs and that
they had a very long way to go before they would be able to make
detailed estimates.[335]
They claimed that consultation with the Department for Constitutional
Affairs had not been adequate and that in most respects the process
of consultation had not really begun.[336]

315. Given that the Bill has been under consideration
for so many years, we fail to understand why the Department were
not able to produce more accurate figures, and do not appear to
have carried out adequate consultations on likely costs. We regret
that the draft Bill was presented for Parliamentary scrutiny without
an accompanying assessment of the resource implications. We were
surprised that the Treasury should have apparently waived the
requirement for a full resource impact assessment to accompany
the draft Bill which placed us in the invidious position of having
to carry out our scrutiny without any detailed indication of what
the Bill might cost.

Possible costs of the Bill

316. Although provisional, the Department's estimates
do show that the cost of the Bill will be considerable. Set-up
costs will be in the region of £17 million and on-going annual
costs a further £18.5 million.[337]
Using these figures, we calculate that the present value of the
costs of the Bill over a ten-year lifetime would be £171
million.

317. The Department told us that these estimates
do not take account of how much was already being spent on mental
incapacity through the provision of legal advice and assistance
and by the NHS and social care. But, although they had apparently
been unable to find out what was being spent in these areas, they
had conservatively assumed the expenditure as being zero in their
cost estimates. Whatever this current expenditure turns out to
be will therefore offset the estimated cost of the Bill. For this
reason, the Department told us: 'It is likely that final cost
estimates will be lower after [such] expenditure has been
taken into account."[338]

Training

318. The Department told us:

"We have not anticipated that there would
be significant costs arising from implementation because the Bill
largely builds upon the current law and best practice."[339]

319. However, the ADSS told us that: 'The Bill has
significant implications for service delivery and there will be
costs associated with implementation.' The ADSS pointed especially
to training costs, which the Department has not explicitly included
in its cost estimates. The ADSS said:

"[T]here are considerable training implications
for care staff. The arising practice issues need to be included
in the new Social Work degree; and in the range of training for
non-professionally affiliated staff. It should be noted that the
majority of care staff will not have a professional qualification."[340]

They also said:

'Significant additional training resources will
need to be deployed to ensure that staff operate within the framework
of the Bill and Codes of Practice. This will include staff employed
directly by local authorities, and those employed in voluntary,
[sic] and independent sector who provide services under care contracts
with local authorities.'

320. This evidence was reinforced by what we were
told by the British Psychological Society's Division of Clinical
Psychology (Scotland). Drawing on its experience with the Adults
with Incapacity (Scotland) Act 2000, the Division anticipated
'a requirement for a huge investment in training'. Without that
investment, they warned that a wide range of local interpretations
would develop, inevitably leading to inequity.[341]

321. In addition, the Department themselves have
subsequently told us that they estimate around 100,00 professionals
will need training under the Bill.[342].

Other implementation costs

322. The ADSS forecast that, in addition to extra
support costs, such as legal advice and preparation of papers
for the Court of Protection:

"The introduction of the Bill could require
a review of current assessment and care management practice, including
risk assessment. These [sic] are concerns that the Bill could
result in additional demands on Social Services from the public,
relatives and friends, and other care professionals, to intervene
in people's lives when there are signs of mental incapacity."[343]

Appointment of Social Services Directors to make
welfare decisions

323. The ADSS referred to Clause 16 of the Bill,
which allows for Directors of Social Services to be appointed
to take welfare decisions on behalf of people with mental incapacity
as well as financial decisions. ADSS told us that 'the extension
of the powers to welfare decisions is likely to result in additional
demands on services which are already at capacity'.

Legal aid

324. The Department's estimate of costs claims that
additional legal aid costs arising from the Bill 'would be restricted
to serious, legal matters so should not increase significantly
above current levels'.[344]
But the Law Society of England and Wales told us in written evidence
that:

'The stated objectives of this Bill will be greatly
undermined by the lack of availability of public funding. The
need for advance planning for the budget implications is brought
to Parliament's attention so that proper planning can take place
and an appropriate enhancement to the legal aid budget identified.'[345]

325. Later, however, in their oral evidence to the
Committee, the Law Society admitted that, since no major case
of this kind had so far come before the Scottish courts, the legal
costs might be less than they had feared.

Savings

326. The ADSS also told us that in some respects
the Bill might produce savings or income: for example, if Local
Authorities were allowed to levy charges on the property of mentally
incapable people for whom they were acting as deputies. They also
thought that the Bill might make it easier for Local Authorities
to collect debt from people with incapacity and, in some circumstances,
might minimise the need for Local Authority intervention by encouraging
people to make advance arrangements for the contingency of mental
incapacity.[346]

328. The Minister of State for Health, Ms Rosie Winterton,
told us that the Department had not calculated what the costs
would be if a facility for independent advocacy was added to the
Bill. But she said that, given the range of decisions that would
be taken under the Bill and the numbers of people involved, she
thought that it was unlikely that the necessary resources would
be available.[348]

329. Although we support some extra provision for
advocacy, we think that uncertainty about the extent of the Department's
commitment to advocacy and lack of any information about the possible
costs entailed further illustrates the problems of bringing the
Bill forward before proper consultation on cost has been carried
out.

331. The ADSS raised concerns that Local Authorities
might not have enough staff to implement the welfare provisions
of the Bill.[350] They
told us that, even if they had the money, the problems of recruiting
and training the social workers, trainers and administrative staff
necessary to implement the Bill were such that it might not be
easy to 'get the bodies'.[351]

332. The ADSS also pointed out that the Bill imposes
no statutory duties for Local Authorities to act. Unless Local
Authorities were given adequate resources by central government,
they might decide not to implement certain parts of the Bill because
they would be unable to divert the necessary resources from carrying
out statutory obligations.[352]

333. The ADSS also claimed that Local Authorities
would need to be assisted with the legal costs of proceedings
before the Court of Protection under the Bill. The costs of one
or two complex legal cases could come to more than the cost of
a social worker.[353]

334. The Minister of State for Health, Ms Rosie Winterton,
told us that the Department for Constitutional Affairs and the
Department of Health were still looking at the long term implications
of the implementation of the Bill for health and social care staff
and the training they would need. She said they were still trying
to get a clearer idea of how many staff members and workers would
be needed in health and social care as a result of the Bill.[354]

336. The Department have listed the benefits they
considered the Bill would produce. But they claim that these benefits
would be impossible to quantify, although 'they are undoubtedly
important to the daily living of millions of people'.[356]
The Department have provided no estimate of the quantum of benefit,
even in the form of ranges of numbers of people affected or the
degree of impact. Nor have they provided any detailed qualitative
analysis of benefit.

337. We are not convinced that no action could have
been taken to quantify benefits or produce a qualitative analysis.
The Cabinet Office guidance makes clear that benefits of many
kinds can and should be appraised and we believe that an attempt
ought to have been made to give us an appraisal of the likely
material benefits of the Bill.[357]

338. We note that Lord Filkin told the Committee
that part of the Department's assessment on resourcing would be
to consider to what extent best practice was currently met among
care professionals and whether there was a gap between average
and best practice.[358]
This in itself involves an assessment of benefit, since one of
the key benefits claimed for the Bill is that it will raise standards
to the level of best practice which the Department are apparently
intending to quantify.